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Independent Investigation Can Preclude ‘Cat’s Paw’ Liability

A supervisor’s discriminatory animus will not support “cat’s paw” liability if the employer conducted an independent investigation that determined the adverse action was entirely justified, apart from the supervisor’s recommendation, the 7th U.S. Circuit Court of Appeals ruled.

John Woods, a lieutenant in the Berwyn Fire Department in Illinois, injured his back on the job and begrudgingly took Family and Medical Leave Act (FMLA) leave at the recommendation of Chief Denis O’Halloran. Upon Woods’ return, O’Halloran told Woods he had three options: normal retirement, a duty-related disability, or a nonduty-related disability. Instead, Woods took a position as the department training officer. Woods later learned that O’Halloran unsuccessfully asked a co-worker to put his own name on the list for training officer, so that O’Halloran would not have to choose Woods.

A year later, after Woods commented on the conditions of a training exercise, O’Halloran responded “Yeah, it’s a young man’s job.” In the following month, Woods met with O’Halloran and requested to leave the training officer position due to harassment. O’Halloran posted a bid to find a replacement. It was understood that if no one signed up, the position would automatically go to Lt. Ronald Hamilton, a friend of Woods who did not want the job. Woods and Hamilton had a conversation about the possibility of the assignment during which Woods told Hamilton that he wanted to kill somebody, “all of them” and that his children were going to “go over there” and “tune them up”—referring to his co-workers and superiors.

The conversation was relayed to O’Halloran, who conducted his own investigation, including an interrogation of Woods, and ultimately issued a statement of charges against Woods, recommending that the Berwyn Board of Fire and Police Commissioners terminate him.

At a hearing, the board heard testimony, listened to opening and closing statements, viewed exhibits, and ruled on objections. The board held that there was cause for discharge. The administrative ruling was upheld by a state court, but Woods nevertheless filed a complaint asserting discrimination and retaliation claims. The district court dismissed the claims, and Woods appealed.

The 7th Circuit first noted that Woods’ claim relied solely on the cat’s paw theory of liability, which applies when “a biased subordinate who lacks decision-making power uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Woods claimed that O’Halloran was the discriminatory subordinate who used the board to fire him.

Under cat’s paw, the court explained, there must be some direct relation between the injury asserted and injurious conduct alleged—it cannot be too remote. Further, the court explained, subordinate discriminatory animus can become too remote to support cat’s paw liability—and break the chain of causation—if the employer conducts an independent investigation that determines the adverse action was entirely justified, apart from the supervisor’s recommendation. The court pointed out, however, that merely conducting an investigation and hearing does not automatically negate the influence of the biased subordinate because the unbiased decision-maker could possibly rely on facts provided by the biased individual.

In this case, the court opined, the hearing broke the chain of causation because the record showed that the board did not rely on facts presented by the presumably biased O’Halloran. Rather, O’Halloran did not testify in the proceeding and the board relied on the testimony of Hamilton, who did not harbor any discriminatory animus. Thus, the court concluded, “because the board made its determination without relying on any of O’Halloran’s statements or actions” the board “was not an unwitting dupe and did not rely on O’Halloran to reach its decision.” Accordingly, the court held that Woods could not prevail under a cat’s paw theory of liability.

Woods v. City of Berwyn, 7th Cir., No. 13-3766 (Oct. 15, 2015).

Professional Pointer: As part of an investigation into alleged employee misconduct, an employer should gather information from a variety of sources and not depend on the word of one supervisor.

Robert N. Dare is an attorney with Pilchak & Cohen, P.C., the Worklaw® Network member firm in metropolitan Detroit.